Shoring Up SGMA: How Advocates Might Use the Holding in Environmental Law Foundation v. SWRCB to Support Sustainable Groundwater Management in California
by Kate Fritz*
The Sustainable Groundwater Management Act ("SGMA" or "Act")1 presents a significant advancement in California’s approach to managing the interaction between groundwater and surface water. Historically, groundwater and surface water were subject to radically different common law rights regimes under California law, which may have exacerbated groundwater overdraft in agriculture areas critical to California’s economy.
While on its face SGMA is a fantastic development for sustainable resource management in the state, much about the Act’s implementation and enforcement is unknown because the first statutory deadline for forming Groundwater Sustainability Agencies ("GSAs") will occur in January 2020.2 It remains to be seen how GSAs will perform given SGMA’s vague substantive provisions, and how GSAs will wield vast discretionary authority to limit groundwater extraction. Academic commenters are concerned about industry capture at the GSA formation stage, and the capacity of GSAs to actually formulate groundwater sustainability plans ("GSPs") that can achieve SGMA’s goals.
At the same time, litigation interpreting SGMA’s substantive provisions is just starting to make its way through California courts. The California Court of Appeals handed down a potentially important holding this August in Environmental Law Foundation v. State Water Resources Control Board ("ELF"),3 which held that the Public Trust Doctrine applies if extraction of groundwater adversely affects public trust-protected navigable waters. The ELF holding may mark the beginning of a major change in the way California courts assess groundwater-surface water interactions, following a national trend.